Lascelles George McLean v. GMAC Mortgage Corp. , 398 F. App'x 467 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11054 ELEVENTH CIRCUIT
SEPTEMBER 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-22795-CV-JJO
LASCELLES GEORGE MCLEAN,
VIRGINIA MCLEAN,
Plaintiffs-Appellants,
versus
GMAC MORTGAGE CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 30, 2010)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Virginia and Lascelles McLean, proceeding pro se, appeal the district court’s
grant of summary judgment in favor of GMAC Mortgage Corporation (“GMAC”)
in their suit under the Real Estate Settlement and Procedures Act (“RESPA”),
12 U.S.C. § 2605. They argue, that the district court: (1) failed to address their
claim that GMAC lacked “standing” to foreclose on their property because they
transferred interest to Federal National Mortgage Association (“Fannie Mae”), and
erred by not allowing them to amend their complaint to add Fannie Mae as an
indispensable party; (2) erred by failing to appoint a guardian ad litem for Ms.
McLean sua sponte; and (3) erred by granting summary judgment to GMAC on
their RESPA claims.1
I. BACKGROUND
The McLeans brought this action in federal court on November 14, 2006
after nearly ten years of legal disputes with GMAC concerning the mortgage on
their house. There were numerous foreclosure actions and three separate
bankruptcies.
1
Although the McLeans asserted other claims below, which the court denied, they do not
raise these claims on appeal, and, therefore, have abandoned them. See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008) (per curiam) (citation omitted) (holding that issues not briefed on
appeal, even by a pro se litigant, are deemed abandoned). In addition, we are cognizant of the
fact tha the mcLeans’ brief was prepared pro se and we have construed the mcLeans’ arguments
liberally.
2
During the third bankruptcy GMAC sent a letter dated December 8, 2004 to
the McLeans’ bankruptcy trustee advising that the McLeans had not been current
with their escrow payments as directed by the bankruptcy plan. As a result, the
GMAC letter indicated that the McLeans’ mortgage payments were going to be
increased from $1,674.84 to $3,923.60, effective February 1, 2005. The McLeans
responded with a letter to GMAC’s Horsham, Pennsylvania address on December
15, 2004 explaining that they believed the escrow account to be current and
requesting an explanation of GMAC’s accounting of the escrow account. Upon
failing to receive a response from GMAC, the McLeans sent a second letter on
February 14, 2005 to GMAC’s attorney which requested: (1) a detailed explanation
for the increase in the mortgage payment; (2) the date when the delinquency in the
escrow account began to accrue; (3) specific amounts of fines and penalties
included in the delinquency; and (4) why GMAC failed to give the McLeans
timely notice of their escrow delinquency.
GMAC responded on February 25, 2005 with a letter that briefly explained
that the December 8 letter was a mistake, that the escrow account was never
delinquent, and that the McLeans should disregard any increase in their mortgage
payments. GMAC’s letter did not address the McLeans’ requests for information
from their February 14 letter. The McLeans subsequently filed this complaint
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which alleged several types of impropriety on the part of GMAC. The district
court granted summary judgment in GMAC’s favor on all the claims, except the
RESPA claim. The McLeans then filed a pretrial contempt motion claiming that
GMAC lacked standing because they had sold the McLeans’ mortgage to Fannie
Mae. The district court denied this motion and then granted summary judgment in
GMAC’s favor on the remaining RESPA claim because the McLeans failed to
show how the alleged RESPA violations caused their injuries.
II. DISCUSSION
A. The McLeans’ Arguments With Regard to Standing are Immaterial and
Were Raised in an Untimely Manner
Although the McCleans are permitted to do so, this case illustrates the perils
of self-representation in complex commercial litigation. The McLeans essentially
brought suit against GMAC and then alleged that GMAC should not be a party to
the lawsuit. Apparently, the McLeans were attempting to argue that GMAC lacked
standing to bring the previous foreclosure actions. However, these arguments were
made in an untimely manner in the wrong court. If the McLeans feel that GMAC
did not have standing to foreclose on their home they should have sought to set
aside the bankruptcy and foreclosure judgments in bankruptcy court. A contempt
motion filed prior to a trial on RESPA violations was neither the time nor the place
to address GMAC’s standing to enforce the terms of their mortgage.
4
Contrary to the McLeans’ assertion, the court did address their “standing”
argument below, rightly concluding that it lacked any merit. The district court
appropriately instructed the McLeans at the pretrial conference in saying: “If you
think you have the wrong party, if you would rather sue Fannie Mae, you are
welcome to do that.” Doc. 219 at 12. Because GMAC, as the defendant, did not
file a counterclaim and did not complain of an injury, the standing requirements are
inapplicable.
B. The District Court Did Not Err in Failing to Appoint a Guardian ad Litem
For Ms. McLean
The McLeans argue on appeal, for the first time, that the district court should
have appointed a guardian ad litem for Ms. McLean. The McLeans did not request
a guardian ad litem previously, but now assert that the district court was under an
obligation to sua sponte appoint one.
“It is well established that the appointment of a guardian ad litem is a
procedural question controlled by Rule 17(c) of the Federal Rules of Civil
Procedure.” Burke v. Smith, 252 F.3d 1260, 1264 (11th Cir. 2001) (quotation
omitted). “Rule 17(c) does not make the appointment of a guardian ad litem
mandatory. If the court feels that the [person’s] interests are otherwise adequately
represented and protected, a guardian ad litem need not be appointed.” Roberts v.
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Ohio Cas. Ins. Co., 256 F.2d 35, 39 (5th Cir. 1958) (per curiam).2 The district
court’s decision as to whether to appoint a guardian ad litem is reviewed for abuse
of discretion. See Ferrelli v. River Manor Health Care Center, 323 F.3d 196, 200
(2d Cir. 2003)
The McLeans never asserted before the district court that Ms. McLean was
not competent to proceed to trial and never requested a guardian ad litem to
represent her. “Neither the language of Rule 17(c) nor the precedent of [the
Second Circuit] or other circuits imposes upon district judges an obligation to
inquire sua sponte into a pro se plaintiff’s mental competence, even when the judge
observes behavior that may suggest mental incapacity.” Ferrelli, 323 F.3d at 201.
In any case, there is insufficient evidence in the record that would alert the district
court to any issue regarding Ms. McLean’s competence. The McLeans did request
several continuances to allow Ms. McLean to recover from psychological stress.
However, psychological and mental stress is not the equivalent of incompetence to
proceed in court. The court transcripts show that Ms. McLean understood the
proceedings and was capable of protecting her interests. Furthermore, Mr. McLean
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit issued before
October 1, 1981.
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was a party to the suit. Therefore, the district court did not err by not appointing a
guardian ad litem sua sponte.
C. The District Court Did Not Err in Granting Summary Judgment to GMAC
for the McLeans’ RESPA Claims
We review a district court’s grant of summary judgment de novo, viewing all
evidence and drawing all reasonable inferences in favor of the non-moving party.
Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008). Summary judgment is
appropriate where the record presents no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Swisher Int’l, Inc. v.
Schafer, 550 F.3d 1046, 1050 (11th Cir. 2008), cert. denied, 130 S. Ct. 71 (2009).
“Mere conclusions and unsupported factual allegations are legally insufficient” to
defeat a summary judgment motion. Bald Mountain Park, Ltd. v. Oliver, 863 F.2d
1560, 1563 (11th Cir. 1989).
RESPA prescribes certain actions to be followed by entities or persons
responsible for servicing federally related mortgage loans, including responding to
borrower inquires. See 12 U.S.C. § 2605. Pursuant to § 2605(e), a loan servicer,
upon receipt of a qualified written request, must provide “a written response
acknowledging receipt of the correspondence” within 20 business days. Id.
§ 2605(e)(1)(A). RESPA further requires that, within 60 business days of receipt
of a qualified written request, the servicer must: (1) make appropriate corrections
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in the account of the borrower and transmit a written notification of such
correction; (2) after conducting an investigation, provide the borrower with a
written explanation that includes a statement of the reasons for which the servicer
believes the account is correct, and the name and telephone number of an employee
or department that can provide further assistance; or (3) after conducting an
investigation, provide the borrower with a written explanation that includes the
information requested by the borrower or an explanation of why the information
requested is unavailable, along with the name and telephone number of an
employee or department that can provide further assistance. Id. § 2605(e)(2).
If a loan servicer fails to comply with any of these provisions, an individual
borrower may recover any actual damages caused by the failure, and up to $1,000
in statutory damages if there is a pattern or practice of noncompliance with
RESPA. Id. § 2605(f). Although we have not specifically defined “actual
damages” within the meaning of § 2605(f)(1)(A), we have held that RESPA is a
consumer protection statute. See Hardy v. Regions Mortg., Inc., 449 F.3d 1357,
1359 (11th Cir. 2006). Consequently, RESPA is to be “construed liberally in order
to best serve Congress’ intent.” Ellis v. Gen. Motors Acceptance Corp., 160 F.3d
703, 707 (11th Cir. 1998) (addressing the remedial nature of the Truth in Lending
Act (“TILA”)).
8
Construing the term “actual damages” broadly, and based on the
interpretations of “actual damages” in other consumer-protection statutes that are
remedial in nature, plaintiffs arguably may recover for non-pecuniary damages,
such as emotional distress and pain and suffering, under RESPA. See, e.g., Banai
v. Sec’y, U.S. Dep’t of Hous. & Urban Dev. ex rel. Times, 102 F.3d 1203, 1207
(11th Cir. 1997) (the Fair Housing Act allowance for “actual damages” includes
anger, embarrassment, and emotional distress). Nevertheless, the McLeans must
present specific evidence to establish a causal link between the financing
institution’s violation and their injuries. See Turner v. Beneficial Corp., 242 F.3d
1023, 1027–28 (11th Cir. 2001) (en banc) (requiring a causal link for TILA
claims). In some circumstances, we have held that a plaintiff’s testimony alone
could support an award of compensatory damages for emotional distress. Akouri v.
Fla. Dep’t of Transp., 408 F.3d 1338, 1345 (11th Cir. 2005) (concerning
constitutional violations). However, “the testimony must establish that the plaintiff
suffered demonstrable emotional distress, which must be sufficiently articulated;
neither conclusory statements that the plaintiff suffered emotional distress nor the
mere fact that a . . . violation occurred supports an award for compensatory
damages.” Id. (quotation omitted).
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Here, even if we assume arguendo, as the district court did, that GMAC
committed two RESPA violations, we still find that the McLeans offered no
competent evidence demonstrating that any of their alleged injuries were caused by
the said violations. In sum, the McLeans’ conclusory allegations were insufficient
to support a claim of emotional distress.
IV. CONCLUSION
The McLeans are free to address any possible issues concerning GMAC’s
standing to foreclose on their home in the proper venue. However, for the
purposes of the RESPA claim we find that GMAC was the appropriate party, but
that the McLeans were unable to articulate any specific injury that was caused by
GMAC’s failure to respond to their request for information. Further, Ms. McLean
was capable of handling her affairs without the aid of a guardian ad litem,
especially in light of the fact that Mr. McLean was a party to the suit. Therefore,
we affirm the summary judgment of the district court.
AFFIRMED.
10